Transcript of the @lawreportrn interview with @journlaw and @julieposetti on May 22, 2012.

To listen, go to the ABC Radio National Law Report website for podcast download.

Anita Barraud: you’re probably all well acquainted with that advice that you shouldn’t put anything on the internet that you wouldn’t want your employer or your mother to see. There are those posts that can lead you to missing out on that great job, but some might even land you in court. James Pattison reports on the legal dangers of your online life.

James Pattison: Have you got a phone in your pocket? Or what about a laptop in your bag? Well, if you use social media, you’re now a publisher, whether you know it or not. Mark Pearson is professor of journalism at Bond University. He’s written a book that’s very aptly named Blogging and Tweeting Without Getting Sued.

Mark Pearson: The book stemmed from 30 years of looking at the law, as it relates to journalists and journalism students, and coming to the realisation a couple of years ago that of course this whole development in social media meant that everybody out there using it is now a publisher, just like journalists have been, and therefore come under the laws of both media law and many others that might apply to citizens who publish things.

James Pattison: And trying to be funny online can land you in some serious trouble.

Mark Pearson: And only last year we had a British gentleman who posted a witty tweet, or what he thought was a witty tweet, about blowing up an airport, and he was just expressing it as satire, he said, because he was frustrated that snow had stopped flights from this particular airport, but unfortunately national security and police agencies don’t always have a sense of humour, and they certainly didn’t in that case, and his house was raided, he was arrested, he was charged with national security offence and he finished up being released, of course, but he suffered a whole lot through the process and spent some time in the big house, at least temporarily, as a result of it. Something none of us need in our lives.

James Pattison: There’s been a lot of changes with media that’s available to us as individuals; a student on their mobile phone posting witty tweets about the lecturer at the front of their lecture theatre, so we now have this instant public communication. Have the laws changed to cover the instant nature of this communication?

Mark Pearson: The basic laws are pretty much the same as they applied to journalists and media organisations in the past. So, your fundamental law of defamation, contempt, confidentiality, all of these areas, you know, the core law is still the same, it’s just that some circumstances have changed with new media and social media.

James Pattison: If the core law is still the same, if the underlying principles are still the same, how’s the adaptation been? Is it exposing perhaps that there’s some principles upon which our legal system is founded, that don’t quite weigh up in 2012?

Mark Pearson: Indeed, it is already demonstrating that, and when it comes to social media law decisions, well, it’s problematic. For example, only last year we had the retired judge Finkelstein presiding over a consumer law case known as the Allergy Pathways case where a company had been directed not to make certain misleading comments about its health treatments, and what had happened was that some of these claims had continued to be made on their website and some by Facebook fans on their Facebook page, and some in a Twitter feed. So Justice Finkelstein was placed with a situation where he had to rule whether the fact that they…some of these comments had been hosted on the company’s Facebook fan page, meant that they were in breach of the order. He held that they were, and he found them in contempt, because of that breach, they were fined. He also made the interesting direction that they should remove all such comments from their Twitter page, whatever a Twitter page is. I don’t know what a Twitter page is, but nevertheless Justice Finkelstein made that direction in that case, so all I’m saying is that judges themselves are still trying to come to grips with social media and its implications, both in the court system and in particular cases where old law should apply, but it has to be adapted to these new technological circumstances.

James Pattison: Professor Mark Pearson. Julie Posetti is a journalist and assistant professor at the University of Canberra. She’s writing a PhD about the impact of social media on professional journalism. Posetti has firsthand knowledge of the troubles that you may encounter when using online platforms like Twitter. A couple of years ago she found herself at the centre of a legal stoush involving the editor of The Australian newspaper, Chris Mitchell.

Julie Posetti: This whole episode, which eventually became the subject of large headlines and news tickers and coverage ad nauseam in the mainstream media, at least as far as The Australian was concerned, started with the live tweeting of a conference about journalism which was being held at the University of Technology in Sydney in late 2010. It was a particularly newsworthy session because it involved the launching of brand new research into the global reporting of the environment and climate change, which was being released in the context of this particular session, and one of the speakers was Asa Wahlquist, who, and I had heard from others, had left The Australian in difficult circumstances, and she was talking about her experience of trying to report climate change and environmental issues generally within the remit of being the rural reporter for The Australian. She was a very…highly respected, very experienced award-winning journalist, so a very trusted source, and somebody who was exceptionally media literate. So, in my mind there were no impediments to reporting what she was saying, and other than to think about the context of the event, which was a public event, there were many journalists present, so there I was, live reporting what Asa Wahlquist was saying. She had some very newsworthy, very interesting, very challenging things to say about what it was like to work at The Australian under its current editorship, and she made comments that were eminently newsworthy, and I felt were appropriate to distribute to the people who were following me on Twitter, and as I live tweeted, I had a couple of people who saw those comments who were at the conference who redistributed them via process which is called re-tweeting, and people who follow me who were not at the conference did the same. So they redistributed those comments, about four or five people I think redistributed those 140 character tweets to their own audiences, so…

James Pattison: What came about as a result of publishing these comments on Twitter?

Julie Posetti: Well, as I understand it somebody at The Australian had been monitoring my tweets, and within I think it was 12 hours of those tweets, 12 to 24 hours of those tweets being published I was sitting on a panel, and there was a live Twitter feed running behind me, and people started gasping and pointing, and somebody sent me a direct message on Twitter on my phone, so I’m sitting at this panel looking at an audience that seemed to be erupting inexplicably, and it became evident that they were reacting to a headline that had been posted by The Australian via their Twitter feed which was being rapidly redistributed which stated that Chris Mitchell, the editor-in-chief of The Australian would sue me, named me, Julie Posetti, as though I was some sort of household name, and that created an immediate explosion, and of course triggered all of the usual legal ramifications. So I had to seek legal advice from my employer, because I was there in my professional capacity as an academic. That resulted in me being effectively silenced because I couldn’t engage in any public discussion while legal advice was being sought, particularly in light of it being a threat to sue for liable or defamation. That’s where it began, and it got a life of its own on social media, it became know as Twitdef, what it came down to was, in any kind of defamation case, in very traditional terms, whether or not there was a defence against defamation, and the protection that the university, myself and our lawyers were relying on was that this was a fair and accurate report of public proceedings, which is a very familiar defence to journalists. So it was quite a tumultuous experience, but one that demonstrated to me both the power and the risk of an active online life.

James Pattison: Julie Posetti, and 18 months later nothing further has come of the threatened legal action. Posetti posted her online comments on her personal Twitter account under her own name, but what if you don’t? There are lots of anonymous internet users who tweet, blog and post comments under a pseudonym. Is this enough of a protection from a possible lawsuit? Mark Pearson.

Mark Pearson: Well, the law is still undecided in that area. Certainly in criminal cases there’s a very strong argument, but we have yet to get enough decisions to really base any real judgement on there, but even if the courts are reluctant, because of IP addresses and so on, the lawyers and the discovery process can often actually find the suspect as it were, or the defendant in a civil action. It happened in Australia only a couple of years ago, where an anonymous poison penner in Western Australia was using the pseudonym Witch to attack a technology security company and its chairman. Well, the court ordered the forum host Hot Copper to hand over the blogger’s details, and at first the details could only be tracked to an interstate escort service, but the law firm conducted its own private investigation and eventually found the true author of the postings and then that author was hit with a $30,000 damages verdict.

James Pattison: So, let’s say that you’re living in Australia, you post a comment albeit witty about somebody in the United States.

Mark Pearson: You raise a really interesting point, and that is to do with the whole area of jurisdiction, and that’s why I’ve, you know, very boldly targeted the book internationally, because really it’s silly talking about the laws of just one jurisdiction when social media defies all jurisdictional boundaries. My own blog, Journlaw, journlaw.com, is…doesn’t have a huge following, it doesn’t have a huge readership, on any day there might be 50 or 60 people looking at it, but on any day, while 90 per cent of them will be looking at it from Australia, there are these outliers. There will be someone who’s accessed it from Thailand, someone else from Finland, someone else from Kuwait, and what it means is that if I have written something on my blog, which thankfully normally wouldn’t be offensive, but if for example I’d insulted the king in Thailand or perhaps written something blasphemous about Mohammed in Kuwait, then if I ever chose to travel to that place, I could face consequences, and as we learnt a couple of years ago with a Melbourne man who breached the Thai lese-majesty laws, he actually spent six months in one of the so-called Bangkok Hiltons, suffering away with all of the other prisoners, because he had dared to write something about the royal family there.

James Pattison: Julie Posetti, we are sort of caught up in the social aspect of social media and not the media aspect of social media; that what was once a social comment to make, a comment to make amongst friends in a social setting has now become broadcast, and that we do that every single day without realising the consequences of it. What does this present for young people who believe that they’re just having a bit of fun, and fair enough, just wanting to have a laugh with some friends, but are publishing these things in a public forum?

Julie Posetti: When we have situations where people who are very new to these mediums find themselves saying something that they might say in their lounge room but publishing it broadly, and it might be, you know, terribly defamatory or terribly contemptuous, and find themselves at the end of a threat from a big corporation or a powerful individual, what is the law going to do with that? I think these are all, you know, very interesting questions, and many of these cases have settled out of court, and case law hasn’t necessarily caught up, and it may not catch up and it may not need to catch up, but in the intervening period we have a need, I think, for a lot more communication about these issues and a lot more education about these issues, for the general public in particular.

I have a rule that I share with anybody who I’m teaching or training with regards to social media, which I borrow from my broadcasting experience which goes to the mute button and the capacity for a seven-second delay to exist, so if anything seems to you to be slightly, even slightly risky, don’t hit that send button on Twitter or Facebook, step back for seven seconds, then go and have another look at it. And if you’re still angry, if what you’re doing is about to post in anger or contempt, then step back for another seven seconds.

Anita Barraud: Julie Posetti and Mark Pearson’s book Blogging and Tweeting Without Getting Suedis published by Allen & Unwin. James Pattison with that report, and speaking of social media, on Friday, how Twitter is affecting sports journalism. Some reporters love it, some hate it, it’s certainly causing some conflict in the competitive world of British sports journalists. That’s coming up on the Media Report with Richard Aedy, Friday at 5:30 pm. That’s it for the program this week, thanks to producer James Pattison and to technical producer Angie Grant, and I’m Anita Barraud.

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Description: Every time you blog or tweet you may be subject to the laws of more than 200 jurisdictions. As more than a few bloggers or tweeters have discovered, you can be sued in your own country, or arrested in a foreign airport as you’re heading off on vacation – just for writing something that wouldn’t raise an eyebrow if you said it in a bar or a cafe.

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.